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1998(7) Supreme 241
Supreme Court of India
(From Kerala High Court)
S. Saghir Ahmad & K.T. Thomas, JJ.
N. Ammad -Appellant
versus
The Manager, Emjay High School & Ors. -Respondents
Civil Appeal Nos. 4597-4598 of 1998
(Arising out of SLP (C) Nos. 12721-12722 of 1998)
Decided on 7-9-1998
Counsel for the Parties :
For the Appellant : R.F. Nariman, Sr. Advocate, B.V. Deepak, Advocate.
For the Respondents : P.P. Rao, Sr. Advocate, E.M.S. Anam & Fazlin Anam, Advocates.
Held : When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2.8.1994. (Para 13)
(ii) Constitution of India-Art. 30(1)-Right of minority to educational institution-Kerala Education Rules-Rule 44(1)-Minority School -Post of Headmaster-Seniormost High School Assistant not appointed by management but transfer was made from other school of a qualified person-Seniormost HSA filing writ-Dismissed - Appeal to Supreme Court-Whether management of a minority school is bound by Rule 44(1) of Kerala Education Rules and hence seniormost HSA of the school should have been appointed as Headmaster? (No)-Appeal dismissed. Case law discussed.
Held : The management’s right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive flat would be violative of the fundamental right enshrined in the aforesaid Article and would hence be void. (Para 28)
In the present case, nobody has alleged that 4th respondent does not possess the qualifications prescribed for the post of Headmaster. If that is the position, management has the right and freedom to appoint him as the Headmaster of the school whether it is by bringing him down from another school or even from outside the State. We therefore concur with the conclusion of the Division Bench of the High Court in the impugned judgment and dismiss these appeals. (Para 29)
Judgment
Thomas, J.-Special Leave granted.
2. The simple question in these appeals is this: Is the management of a minority school free to choose and appoint any qualified person as Headmaster of the school or whether such management is hedged by any legislative edict or executive fiat in doing so?
3. The above question arose when management of a school sought to appoint 4th respondent (P.M. Aboobacker) as Headmaster thereof. The school is: “Emjay Vocational Higher Secondary School”. Valliappalli Taluk, Calicut District, Kerala (hereinafter referred to as `the school’). This move was stiffly resisted by the appellant who is the seniormost teacher in the school. At his instance, the District Education Officer (DEO) interfered but of no avail. Appellant thereupon filed a writ petition in the High Court of Kerala for a writ of mandamus to the management of the school to appoint him as Headmaster. Learned Single Judge of the High Court, who heard the writ petition, allowed it and issued a direction as prayed for by the appellant. But a Division Bench of the High Court reversed that judgment and dismissed the writ petition. Hence, appellant has come up to this Court seeking special leave to appeal.
4. Some more facts will be advantageous to focus on the point in dispute.
5. Appellant was appointed as a teacher (High School Assistant - HSA - as it is called) in the school on 3.6.1982, and in June 1991 he became the seniormost teacher there. The post of Headmaster of the school fell vacant during that time. None in the teaching staff of the school, including the appellant, was qualified to be appointed as Headmaster then. One of the requisites for the post of Headmaster, as per the relevant rules, is that he must possess a minimum service qualification of 12 years of continuous graduate service. Appellant would have completed the said period of 12 years only in June 1994. Nonetheless, appellant was put in charge as Headmaster of the school with the approval of the DEO concerned. When appellant completed the required period for service qualification he pressed the management to appoint him as regular Headmaster. The DEO also sent a communication to the management requesting them “to promote and appoint a qualified seniormost HSA as Headmaster with immediate effect”. But the management, instead of acceding to the aforesaid request, brought 4th respondent (who was a graduate teacher having larger period service than the appellant) from another school as per a transfer order which was approved by the department on 5.9.1994, and appointed him as Headmaster of the school. It was then that the appellant filed the writ petition for issuing appropriate directions including a direction to send 4th respondent back to the school wherefrom he was brought.
6. Some undisputed factual features are these: The school was declared by the Government as a Muslim Minority Community School as per G.O. (RT) 2959/94/G. Edn. It is an aided school and is governed by the provisions of the Kerala Education Act, 1958 (for short ‘the Act’). 4th respondent is qualified to be appointed as Headmaster on the date when he was appointed as such and he has longer service than the appellant as HSA, though he had such service in a different school. As per the relevant rules, when a teacher is transferred from one school to another his rank in the new school shall be fixed next below the juniormost teacher in that school in the particular grade.
7. The contention of the appellant is that he being the seniormost graduate teacher should necessarily have been appointed as the Headmaster and none else. He also contended that transfer of 4th respondent from another school was vitiated as approval for such transfer was made on the premise that he was being transferred to hold the post of Headmaster. The third contention is that as the vacancy of Headmaster arose before 2.8.1994, the post should have been filled up in accordance with Rules and the protection as minority school
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